Illogical Illinois Law

Sometimes I actually learn something in law school.  Take yesterday for example.

In my Property class, we were discussing Illinois common law as it relates to non-married couples.  What if a romantic couple had lived together for 10 years, never officially got married, and then one of them dies?  What happens to their joint property?  Say they bought living room furnitute together, who gets to keep it?  What if they had been prepared for this and actually had official contracts drawn up to dictate what they wanted to happen to their property in this specific situation?

Amazingly enough, in Illinois, the courts would not recognize their contracts.   That’s right, they would completely ignore the legal rights of the non-married co-habitating couple.  Why would they do that?  The logic is that if they honored the agreement, than there would be no incentive for any couple to get married.  So the court does NOT recognize any agreement made been co-habitating couples who are not married.

What is bizzare though, is that the court DOES recognize contracts between people who are not in a sexual relationship.  So, that means if those two people were roomates, instead of an official couple, than the court would respect the contract that they made.  Did you follow that?   Because a couple has sex and live together, their contracts are void.  If they didn’t have sex, than the contract would not be void.  Roommates can have contracts like that, couples who have sex but aren’t married cannot.

Does that make sense to you?  Reminder:  The purpose is to encourage those couples to officially get married.

OK, that can somewhat be understood, right?  But what if that couple is legally not allowed to get married?

I think you know where I am going with this:  Same-sex couples.

See if you can understand this.  A same-sex couple could be together for 30 years, sharing a life as any couple would.  They draw up contracts to allocate what happens to their belongings and settle affairs in case something happens to one of them.  In Illinois, those contracts are void.  Why?  To promote marriage of course.  But, oops, they are not allowed to get married.  Does that seem right?  The illogical nature of it is easiest to understand in the abstract:

The law punishes conduct B, because it wants to encourage conduct A.  However, the law does not allow conduct A.  So in essence the law promotes a new conduct C…none of the above.

What this means is that the law specifically encourages same-sex couples to avoid monogamy and discourages them from entering stable relationships.


6 thoughts on “Illogical Illinois Law

  1. Provided, in straight couples, the government encourages them to get married because it means increases in revenue for the various levels of government…

    As annoying as it is I bet the arguments for and against that statute didn’t even consider gays.

  2. I agree that the lack of honoring the contracts came about without thinking of same-sex couples at all. It has been around for a long while. However, that doesn’t negate the fact that the status quo patently punishes same-sex stability.

    And I’m not sure I follow on the revenue thing. When it comes to government money, it would actually be in the state’s interest to promote same-sex co-habitation. Stable, co-habitating couples (heterosexual and homosexual) always use LESS state resources. In other words, stable couples take care of each other in sickness and financial struggles. Stable couples are less frequently on Welfare. Stable couples less frequently rely on Medicare/Medicaid. Stable couples use less taxpayer funded Emergency Room medical care. The more stable couples there are, the less drain on the government system. It makes no logical sense for law to discourage same-sex stability.

  3. I’ll agree, marriage is a net benefit for society and government, hence why the government encourages it. I’d argue that divorce, the result of some marriages, is not though. Divorced people take up 100% of alimony collection assistance, divorce court costs, child care custody issues, etc. etc. Perhaps lawmakers feel gays would get divorced more? But probably not. Its pretty much just straight gay hate.

    This all said, the government cost thing is really kind of a retro-active argument. When those laws were made, gays didn’t exist in the eyes of most lawmakers, and those that did generally weren’t looking for marriage anyway.

    I think it is a bit of a stretch to say Government discourages successful gay cohabitation. I work for government, and that statute is a bit much.

    I’d think it was more accurate to say that gay rights activists and their legal departments are discouraging successful cohabitation by not bringing a test case to court.

  4. I can see how divorce would bring about additional costs. However, I agree with you that the net revenue result is still in favor of marriage. Any way it is sliced, stable, co-habitating relationships save state money.

    Most importantly though, I should mention that this is not a statute enacted by lawmakers in Illinois. It is common law. No General Assembly ever passed a bill stating that contracts are voided for co-habitating romantic couples. It is simply judge made law that has existed for quite some time.

    My point here wasn’t to say that ‘Government’ discourages anything as a whole. ‘Government’ is a tangle of opposing and complicated entities, and blanket statement about what government ‘encourages’ can never be 100% accurate.

    I am talking only about the current law as it exists in Illinois. Laws encourage and discourage activity. That is often their whole purpose. If a law forbids gay marriage and then punishes co-habitation, I think it is reasonable to say that the structure of the law is tilted toward unstable, non-cohabitating same-sex relationships.

    It makes no difference whether this was the ‘intended’ affect or that it has been this way long before gay issues were ever on the radar. We are not talking about what the judges who made the law specifically meant to be the result.

    What matters is what the current law is and does.

    Finally, I have no judgment on current gay rights activists and their activities. Though HB1826 is currently being pushed through the IL General Assembly which would negate this common law by enacting civil unions.

    But the argument that they are the ones at fault seems silly. There were no ‘test cases’ brought to court on the legality of segregation in the 1930s and 40s. Would it have made sense then to say that civil rights activists were encouraging segregation by not bringing tests cases to the courts?

    BTW, I appreciate the back and forth on this issue. I’m learning much by being forced to think more deeply about it. Thanks for that. 🙂

  5. Yeah, I wasn’t suggesting anything negative as to your thoughts on government. Just wanted to point out that the issue wasn’t that simple.

    The fact that the current law was made as common law by a judge makes the matter even worse as far as I am concerned. Rule of Thumb anyone?

    Actually, I would blame the civil rights activists in that account as well. Although they weren’t aware enough that the courts really are the only haven for minorities, so its kind of unfair to expect that of them.

    LGBT activists are trying to go about it in a different way because the courts haven’t been so routinely nice to them, but I think its a bit inane (as per your stated reasons) that they couldn’t bring a simple case like this to court and get it overturned.

    That all said, if the test case on relationship contracts did happen, then marriage would be discouraged for all… And then we’d all be living in Saddam and Gomorrah. And who would want that.

    I enjoy it as well, its a nice distraction from all the paper writing I’ve been doing recently.

  6. I’ll also note that apparently there are lots of places Google can find that say Saddam and Gomorrah, and not Sodom and Gomorrah.

    Bad gay.

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